Citation Nr: 9829478
Decision Date: 10/01/98 Archive Date: 10/13/98
DOCKET NO. 95-37 285 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
Puerto Rico
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen the appellant’s claim for entitlement to service
connection for a psychiatric disorder, claimed as post-
traumatic stress disorder (PTSD).
2. Whether new and material evidence has been submitted to
reopen the appellant’s claim for entitlement to service
connection for residuals of a right leg injury.
3. Whether new and material evidence has been submitted to
reopen the appellant’s claim for entitlement to service
connection for varicose veins.
4. Entitlement to service connection for a dental disorder.
5. Entitlement to service connection for hearing loss.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. C. Graham, Associate Counsel
INTRODUCTION
The appellant served on active duty for training from October
1963 to June 1964. He also had numerous periods of active
duty for training with the Army National Guard in Puerto
Rico, including a period from July 22, 1979, to August 5,
1979. Puerto Rico Army National Guard records dated in
October and November 1985 indicate that the veteran had
another period of active duty for training under 32 U.S.C.
§ 502 which began on May 19, 1979. These records conflict as
to whether that period of service ended on May 19, 1979, or
on May 20, 1979.
The instant appeal arose from a November 1994 rating decision
of the Department of Veterans Affairs (VA) Regional Office
(RO), in San Juan, Puerto Rico, which denied claims for
service connection for a dental disorder and hearing loss and
also denied claims to reopen claims of entitlement to service
connection for a nervous disorder, a right leg disorder, and
varicose veins.
The appellant’s claim for service connection for a dental
disorder also raises a claim for outpatient dental treatment.
Mays v. Brown, 5 Vet. App. 302 (1993). Since the issue of
outpatient dental treatment has not been developed, the RO
should refer that claim to the VA Medical Center nearest to
the appellant’s home for appropriate action.
The claims to reopen claims of entitlement to service
connection for a nervous disorder, a right leg disorder, and
varicose veins are discussed in the REMAND section below
which follows the ORDER in this case.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends, in substance, that a dental disorder
and hearing loss began during a period of service and that
now all his teeth are missing and he has hearing loss;
therefore, he believes service connection is warranted for
these disorders.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the appellant’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the appellant has not met his
statutory burden of submitting evidence sufficient to justify
a belief by a fair and impartial individual that his claims
for service connection for a dental disorder and hearing loss
are well grounded.
FINDINGS OF FACT
1. Available service medical records are silent as to any
complaint, diagnosis, or treatment referable to a ratable
dental disorder or hearing loss.
2. There is no medical evidence of any complaint, treatment,
or diagnosis regarding sensorineural hearing loss proximate
to service.
3. There is no medical evidence that the appellant currently
has a dental disorder or hearing loss.
4. There is no objective medical evidence of record which
links the appellant's claimed dental disorder and hearing
loss to any of his periods of service.
CONCLUSION OF LAW
The claims for service connection for a dental disorder and
hearing loss are not well grounded. 38 U.S.C.A. § 5107(a)
(West 1991); 38 C.F.R. § 3.303 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Under 38 U.S.C.A. § 1131, compensation will be provided if it
is shown that the claimant suffers from a disease or injury
incurred in or aggravated by active duty service, which
includes periods of active duty for training. See also
38 C.F.R. § 3.6(a) (1998). In addition, service connection
may be granted for any disease diagnosed after discharge,
when all of the evidence including that pertinent to service,
establishes that the disease was incurred in service.
38 C.F.R. § 3.303(d) (1998). However, a current disability
must exist. Rabideau v. Derwinski, 2 Vet.App. 141 (1992).
Before service connection may be decided, however, the
initial question for resolution is whether the appellant has
submitted a well-grounded claim in accordance with
38 U.S.C.A. § 5107 (West 1991), and Murphy v. Derwinski, 1
Vet.App. 78 (1990). "[I]n order for a claim to be well
grounded, there must be competent evidence of a current
disability (a medical diagnosis); of incurrence or
aggravation of a disease or injury in service (lay or medical
evidence); and of a nexus between the in-service disease or
injury and the current disability (medical evidence)."
Caluza v. Brown, 7 Vet.App. 498, 506 (1995)(citations
omitted). The Board finds that this requirement has not been
satisfied for the appellant’s claims for service connection
for a dental disorder and hearing loss.
Dental disorder
A review of the appellant’s service medical records does not
show a dental disorder in service as defined by VA
regulations. In February 1994 the appellant was asked to
provide information regarding where he had received treatment
for his claimed dental problems. In a February 1994 written
statement in response, the appellant noted “Dental: Fort
Buchanan, P.R. 1963 (all teeth are missing now).” He
appeared to be referring to the sole service dental record
(other than his entrance, separation, and quadrennial
examinations), a November 1963 dental examination which took
place at Fort Buchanan, Puerto Rico. The appellant has not
contended that he suffered any dental trauma in service.
The appellant’s October 1963 entrance examination simply
indicated that his teeth were acceptable. The November 1963
dental examination showed teeth numbered 1, 14, 16, 17, 19,
and 32 were missing, and also noted evidence of abnormality
on teeth numbered 3, 15, 17, 18, and 30. The appellant’s
June 1964 separation examination showed that examination of
his teeth was acceptable, with teeth numbered 1, 14, 18, 19,
and 31 missing and teeth numbered 2 and 12 restorable.
The available National Guard records do not show any evidence
of dental treatment; however, the appellant’s teeth were
found to be acceptable on quadrennial examinations in March
and April 1978. The March 1978 examination report showed
that teeth numbered 5, 12, 14, 18, 19, 30, and 31 were
missing.
During his February 1998 personal hearing before the
undersigned member of the Board, the appellant testified,
when asked to describe his dental disorder, “What happened
with that is that upon getting the full range of
complications from all the other combined illnesses I
acquired diabetes and that in turn has affected my dental.”
The Board determines the appellant’s claim for service
connection for a dental disorder is not well grounded since
the record does not include medical evidence of a current
dental disorder or evidence that links the claimed current
disability with service. Rabideau v. Derwinski, 2 Vet.App.
141 (1992); Montgomery v. Brown, 4 Vet.App. 343 (1993). VA
regulations state that treatable carious teeth, like those
noted in the November 1963 dental examination, are not
disabling conditions. 38 C.F.R. § 4.149 (1998).
The appellant’s testimony is construed as a claim for
secondary service connection for a dental disorder as he
stated that his dental problems were a result of diabetes. A
review of VA outpatient treatment records shows that the
veteran does have diabetes; however, he is not service-
connected for diabetes, or for any other disorder. Since
secondary service connection may only be granted for a
disability which is proximately due to or the result of a
service-connected disease or injury, the appellant’s claim in
that regard is not plausible. 38 C.F.R. § 3.310(a) (1998).
As the appellant has not presented medical or competent
evidence which would justify a belief by a fair and impartial
individual that it is plausible that he has a dental
disability related to service, that claim must be deemed not
well grounded and therefore denied. As the appellant and his
representative are not medical experts, they are not
competent to express an authoritative opinion regarding any
medical causation of his claimed disorder. Espiritu v.
Derwinski, 2 Vet.App. 492 (1992).
The Board views its discussion above sufficient to inform the
appellant of the elements necessary to complete his
application for service connection for a dental disorder.
Robinette v. Brown, 8 Vet.App. 69 (1995). Whereas the Board
has determined that the appellant’s claim for service
connection is not well grounded, VA has no further duty to
assist the appellant in developing facts in support of that
claim. Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992).
Although where a claim is not well grounded VA does not have
a statutory duty to assist a claimant in developing facts
pertinent to the claim, VA may be obligated under 38 U.S.C.A.
§ 5103(a) to advise a claimant of evidence needed to complete
his application. This obligation depends on the particular
facts of the case and the extent to which the Secretary has
advised the claimant of the evidence necessary to be
submitted with a VA benefits claim. Robinette v. Brown, 8
Vet.App. 69 (1995). Here, the RO fulfilled its obligation
under section 5103(a) in a June 1995 statement of the case
which informed the appellant that the reason his claim for
dental disorder had been denied was that available service
medical records were negative as to the claimed disorder.
As the appellant has not submitted the necessary medical
opinion or other evidence in support of this claim, it must
be considered not well grounded. 38 U.S.C.A. §§ 1310, 5107
(West 1991); 38 C.F.R. §§ 3.312, 20.101 (1998). Since this
claim is not well grounded, it must, accordingly, be denied.
Grottveit v. Brown, 5 Vet.App. 91 (1993); Boeck v. Brown, 6
Vet.App. 14 (1993).
Hearing loss
As indicated above, service connection may be established by
affirmatively showing inception during service. However,
entitlement to service connection for impaired hearing is
subject to the additional requirements of 38 C.F.R. § 3.385,
which provides:
For the purpose of applying the laws
administered by VA, impaired hearing will
be considered to be a disability when the
auditory threshold in any of the
frequencies 500, 1000, 2000, 3000, 4000
Hertz is 40 decibels or greater; or when
the auditory thresholds for at least
three of the frequencies 500, 1000,
2,000, 3,000, or 4,000 Hertz are 26
decibels or greater; or when speech
recognition scores using the Maryland CNC
Test are less than 94 percent.
This regulation, while not a medical definition of hearing
loss, does define hearing disability for VA compensation
purposes. See Hensley v. Brown, 5 Vet.App. 155 (1993) (the
threshold for normal hearing is from 0 to 20 dB, and higher
threshold levels indicate some degree of hearing loss).
A review of the appellant’s service medical records does not
show a hearing disability in service as defined by VA
regulations. His service entrance and separation
examinations, dated in October 1963 and June 1964,
respectively, show scores of 15/15, bilaterally, on whisper
voice tests. In addition, a quadrennial examination for the
Puerto Rico National Guard dated April 1, 1978, also showed a
score of 15/15 on a whisper voice test. Another quadrennial
examination dated March 18, 1978, revealed results of a more
thorough audiological evaluation.
On the March 1978 authorized audiological evaluation, pure
tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
35
25
25
20
20
LEFT
35
25
25
20
20
Speech audiometry scores were not provided. These results do
not meet the requirements for a hearing disability for VA
compensation purposes.
In February 1994 the appellant was asked to provide
information regarding where he had received treatment for his
claimed ear problems. In a February 1994 written statement
in response, the appellant noted “Impaired hearing: Camp
Santiago, Salinas, P.R. 1977-78, DVA for records.” As noted
above, an audiological examination in March 1978 did not show
hearing disability. Further, a review of VA treatment
records from January 1984 to May 1990 shows no complaints,
treatment, or diagnosis of hearing problems.
During his February 1998 personal hearing before the
undersigned member of the Board, the appellant testified,
when asked when he had first noticed a hearing loss, “That
loss of hearing has just occurred recently.” The appellant
was then asked why he believed his hearing loss should be
service-connected, and he responded, “As far as me thinking
that it might be related I haven’t actually stated that
now.”
The Board determines the appellant’s claim for service
connection for hearing loss is not well grounded since the
record does not include medical evidence of a current
disability or evidence that links the claimed current
disability with service. Rabideau v. Derwinski, 2 Vet.App.
141 (1992); Montgomery v. Brown, 4 Vet.App. 343 (1993).
There is no evidence in the record that the claimed level of
hearing loss ever met the requirements for a hearing
disability for VA compensation purposes. Hence, the medical
evidence does not demonstrate that bilateral hearing loss was
incurred in service, or that he has a current bilateral
hearing loss compatible with § 3.385. For these reasons, his
claim must be deemed not well grounded and therefore denied.
As the appellant has not presented medical or competent
evidence which would justify a belief by a fair and impartial
individual that it is plausible that he has a current hearing
loss disability, that claim must be deemed not well grounded
and therefore denied. As the appellant and his
representative are not medical experts, they are not
competent to express an authoritative opinion regarding any
medical causation of his claimed disorder. Espiritu v.
Derwinski, 2 Vet.App. 492 (1992).
The Board views its discussion above sufficient to inform the
appellant of the elements necessary to complete his
application for service connection for hearing loss.
Robinette v. Brown, 8 Vet.App. 69 (1995). Whereas the Board
has determined that the appellant’s claim for service
connection is not well grounded, VA has no further duty to
assist the appellant in developing facts in support of that
claim. Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992).
Although where a claim is not well grounded VA does not have
a statutory duty to assist a claimant in developing facts
pertinent to the claim, VA may be obligated under 38 U.S.C.A.
§ 5103(a) to advise a claimant of evidence needed to complete
his application. This obligation depends on the particular
facts of the case and the extent to which the Secretary has
advised the claimant of the evidence necessary to be
submitted with a VA benefits claim. Robinette v. Brown, 8
Vet.App. 69 (1995). Here, the RO fulfilled its obligation
under section 5103(a) in a June 1995 statement of the case
which informed the appellant that the reason his claim for
hearing loss had been denied was that available service
medical records were silent as to the claimed disorder and
there was no evidence that the appellant had hearing loss
manifested to a compensable degree within one year of
service.
As the appellant has not submitted the necessary medical
opinion or other evidence in support of this claim, it must
be considered not well grounded. 38 U.S.C.A. §§ 1310, 5107
(West 1991); 38 C.F.R. §§ 3.312, 20.101 (1995). Since this
claim is not well grounded, it must, accordingly, be denied.
Grottveit v. Brown, 5 Vet.App. 91 (1993); Boeck v. Brown, 6
Vet.App. 14 (1993).
ORDER
Claims for entitlement to service connection for a dental
disorder and hearing loss are denied.
REMAND
The appellant contends, in substance, that he has a
psychiatric disorder which began in service when a fellow
soldier became upset in a non-combat situation and began
firing behind him. He also asserts that he has a right leg
disorder as a result of a fracture he sustained in service.
Finally, he contends that his varicose veins were incurred
during a period of active duty training or were aggravated by
marching during a period of active duty training. Therefore,
he believes service connection is warranted for these
disorders.
Under 38 U.S.C.A. § 5103(a) (West 1991), VA has a duty to
notify claimants of the evidence necessary to complete their
applications for benefits where their applications are
incomplete. During his January 1995 personal hearing the
appellant testified that he was currently the recipient of
Social Security Administration (SSA) disability benefits for
his nerves and his leg.
Records pertaining to the award of such benefits by the Social
Security Administration (SSA) have not been associated with
the record certified for appellate review. Such records may
be of significant probative value in determining whether the
claims to reopen for the disabilities at issue may be granted.
The United States Court of Veterans Appeals (Court) held in
Lind v. Principi, 3 Vet.App. 493, 494 (1992), that the VA
should attempt to obtain records from other federal agencies,
including the SSA, when the VA has notice of the existence of
such records. See also Murincsak v. Derwinski, 2 Vet.App.
363, 370-372 (1992). Thus, the RO must request complete
copies of the SSA records utilized in awarding the appellant
disability benefits.
For the reasons stated, this case is REMANDED to the RO for
the following actions:
1. The RO should obtain copies of all
administrative and medical records
compiled and/or utilized by the Social
Security Administration in connection
with an award of disability benefits to
the appellant. The RO should proceed
with all reasonable follow-up referrals
that may be indicated by the inquiry.
All attempts to obtain records which are
ultimately not obtained should be
documented.
2. Following completion of the
foregoing, the RO must review the
appellant’s claims folder and ensure that
all of the foregoing development action
has been conducted and completed in full.
If any development is incomplete,
appropriate corrective action is to be
implemented.
3. The RO should readjudicate the
appellant’s claims to reopen claims of
service connection for a psychiatric
disorder, a right leg disorder, and
varicose veins with consideration given
to all of the evidence of record,
including any additional medical evidence
obtained by the RO pursuant to this
remand.
If any benefit sought on appeal, for which a notice of
disagreement has been filed, remains denied, the appellant
and his representative should be furnished a supplemental
statement of the case and given the opportunity to respond
thereto. Thereafter, the case should be returned to the
Board, if in order.
The appellant need take no action until otherwise notified,
but he and/or his representative may furnish additional
evidence and argument while the case is in remand status.
Booth v. Brown, 8 Vet.App. 109, 112 (1995); Quarles v.
Derwinski, 3 Vet.App. 129, 141 (1992). The purposes of this
remand are to procure clarifying data and to comply with the
governing adjudicative procedures. The Board intimates no
opinion, either legal or factual, as to the ultimate
disposition of this issues addressed in this REMAND.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
HOLLY E. MOEHLMANN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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